People v. Apalatequi

• Decision Date: 19 July 1978
• Docket Number: Cr. 3007
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mike Frank APALATEQUI, Defendant and Appellant.

Page 473

147 Cal.Rptr. 473

82 Cal.App.3d 970

The PEOPLE, Plaintiff and Respondent, v. Mike Frank APALATEQUI, Defendant and Appellant.

Cr. 3007.

Court of Appeal, Fifth District, California.

July 19, 1978.

Paul Halvonik, State Public Defender, under appointment by the Court of Appeal, Gary S. Goodpaster, Chief Asst. State Public Defender, Mark L. Christiansen, Richard L. Phillips and Richard E. Shapiro, Deputy State Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just and James T. McNally, Deputy Attys. Gen., for plaintiff and respondent.

ORDER ON MOTION UNDER PENAL CODE SECTION 1181, SUBDIVISION 9

HOPPER, Associate Justice.

This case is before us on a motion under Penal Code section 1181, subdivision 9, for an order vacating a judgment, which motion was consolidated with an appeal to this court. The motion is based upon the fact that the official court reporter had lost her notes and was unable to provide a transcript of the arguments to the jury. Defendant Apalatequi raised several issues on appeal, including a contention of prosecutorial misconduct in the arguments to the jury. This court denied without prejudice the original motion to vacate the judgment because the defendant had not attempted to obtain a settled statement on appeal. Defendant then submitted a proposed settled statement. That proposed settled statement by the defendant read as follows:

"During the final closing argument, the district attorney made the following statements to the jury:

"We wouldn't have wasted the time and expense of a jury trial if we didn't think the defendant actually sold heroin. The defendant and others who sell heroin are scum. If the defendant is acquitted you might find your child dead of an overdose because of him.

"The context within which these remarks were made did not diminish their prejudicial effect.

"Defendant's attorney objected to these remarks."

The prosecutor objected to the defendant's proposed settled statement. A hearing was duly held at which time the trial judge stated that he did not have an independent recollection and that perhaps testimony would ring a bell. Testimony was elicited from the defendant, his trial counsel, the prosecutor, and a juror. Defendant and his trial counsel testified that each of them recalled the statements set forth in the defendant's proposed settled statement. The juror recalled the reference to "children of the jurors" and remembered "overdose" being used, but was not sure whether the word "overdose" occurred during the argument or during jury deliberations. The prosecutor denied making the statements attributed to him by the defendant. The trial judge rejected defendant's proposed settled statement and accepted substantially all of the prosecutor's proposed settled statement. The engrossed settled statement which the defendant contends was incomplete said in pertinent part:

"The Court, having heard testimony, arguments of counsel and having reviewed it's (sic) file certifies the following as the Settled Statement of pertinent events which occurred during the final arguments of counsel on October 13th, 1976:

"In the course of closing argument, counsel for defendant argued that the prosecution's case was unreliable and that an information is not evidence of guilt.

"In rebuttal the Deputy District Attorney argued 'it is certainly the law of this state, as well as others, that merely because an information is filed or a person is arrested is no evidence of his guilt. However, the Sheriff's Department and all of it's (sic) resources would not have conducted a buy program such as this and expended tremendous time and energy on suspicions only.

" 'We would not have wasted your time here at a jury trial if there was not strong evidence against this defendant.'

"There was no objection to any of the foregoing by the defendant."

The judge stated that he did not have a specific memory of the argument of counsel, but believed that the prosecutor had not made the remarks attributed to him by the defendant because, if such remarks had been made, the judge would have immediately admonished the jury to ignore such remarks.

Penal Code section 1181, subdivision 9, provides in pertinent part as follows:

"9. When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule . . . because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment . . . from which an appeal has been taken . . . and to order a new trial of the action or proceeding." (Emphasis added.)

While an official court reporter's notes of every part of a proceeding may not be necessary (People v. Hulderman (1976) 64 Cal.App.3d 375, 134 Cal.Rptr. 223; People v. Scott (1972) 23 Cal.App.3d 80, 100 Cal.Rptr. 34; People v. Fuentes (1955) 132 Cal.App.2d 484, 282 P.2d 524), we believe that, when viewed in the light of contention of prosecutorial misconduct alleged by the defendant here, the arguments to the jury in this particular case were a substantial part of the record. The method of an engrossed settled statement is insufficient to afford this defendant effective appellate review. On appeal there must be an adequate record to enable the court to pass upon the questions sought to be raised (People v. Chessman (1950) 35 Cal.2d 455, 460, 218 P.2d 769). This we are unable to do in respect to the alleged prosecutorial misconduct in the arguments without being...